Admissions Made In Pleadings Are Binding U/S 21 of Evidence Act and Cannot Be Retracted At Appellate Stage

2. No one appears on behalf of rest of the respondents.

3. This Appeal has been preferred on behalf of appellant-

National Insurance Company dissatisfied with the

Judgment/Award dated 31.08.2019 passed in Motor Accident

Claim Case No. 31 of 2018 by the learned District Judge-II

cum M.A.C.T., Giridih whereby the learned Tribunal has

directed to pay a sum of Rs. 2,85,275/-.

4. The brief facts leading to this Misc. Appeal are that the

Claim Petition was filed on behalf of claimant Asmin Parveen @

Nagmi with these averments that on 21.04.2017 she along

with her family members was going to her house by the Bolero

Vehicle No. JH-02U-5280 after having attended the marriage

ceremony from Deoghar and at 12:30 when she reached near

the village Jhalakdiha, the driver of the Truck No.

JH-11F-9616 driving the Truck rashly and negligently dashed

to the Bolero Vehicle whereby Md. Adil Ansari died at the spot

and the claimant along with other passengers sustained

injuries. They were brought to the Sadar Hospital for

treatment. Bengabad P.S. Case No. 128 of 2017 was registered

under Sections 279, 337, 338 and 304(A) of I.P.C. against the

driver of offending Truck No. JH-11F-9616. The claimant was

a private tutor cum B.Sc. student and was earning Rs.

10,000/- per month by giving tuition. She was 22 years old at

the time of accidence. Hence the compensation amount was

claimed.

5. Notice were issued to O.P.No.1 the owner of the offending

Truck, O.P.No.2 insured owner of the offending Truck,

O.P.No.3 driver of the offending Truck, owner of the Bolero

Vehicle No. JH-02U-5280 and O.P.No.6 driver of the Bolero

but none of them appeared. Hence the proceeding of the Claim

Petition was proceeded against them ex parte.

6. The O.P.No.4 the Insurance Company of the offending

Truck filed the written statement in which it was stated that

the Claim Petition was not maintainable indeed the said

accident was the result of head on collision between

Bolero vehicle and the Truck. The Insurance Company of the

Bolero vehicle has not been impleaded party to this Claim

Petition. The driver of Bolero was not having the valid and

effective driving licence who was also negligent in causing the

accident. It is further stated that injured Asmin Parveen @

Nagmi is herself guilty of wilful contributory negligence

and the case was of contributory negligence between the

driver of the Bolero and the driver of the offending Truck.

7. On the basis of the pleadings of the parties, the learned

Tribunal framed the following issues:

i. Is the suit maintainable in its present form ?

ii. Is there any cause of action for the suit ?

iii. Whether the accident took place on 21.04.2017 at

about 00:30 A.M. due to rash and negligent

driving of the driver of offending vehicle i.e. Truck

No. JH-11F-9616 causing injuries of the claimant

Asmin Parveen ?

4

iv. Was the driver of the alleged vehicle had valid and

effective driving licence and the offending vehicle

was insured with O.P.No.4 National Insurance

Company Limited on the date and time of accident

?

v. Is the Claimant entitled for compensation and if

so, for what amount and from whom ?

vi. To what relief or reliefs, if any, the Claimant is

entitled ?

8. On behalf of claimant in oral evidence examined P.W.1

Md. Naushad, P.W.2 Md. Israfil and P.W.3 Asmin Parween @

Nagmi claimant herself and in documentary evidence filed

exhibits Ext.-1 the C.C. of F.I.R. of Bengabad P.S. Case No.

128 of 2017, Ext.2- C.C. of Release Petition of Truck No.

JH-11F-9616, Xerox copy of Money Receipt No. 307 dt.

23.4.17 of Jain Hospital is marked ‘X’ for identification,

Original Discharge Slip of Jain Hospital is marked ‘X/1’ for

identification, Original Medicine Final Bill of the Mission

Hospital is marked ‘X/2’ for identification, Xerox copy of

Insurance Policy of Truck No. JH-11F-9616 is marked ‘X/3’ for

identification, Xerox copy of Authorization Certificate of Truck

No. JH-11F-9616 is marked ‘X/4’ for identification, Xerox copy

of Driving Licence of Ghanshyam Yadav is marked ‘X/5’ for

identification, Xerox copy of Registration Certificate of Truck

No. JH-11F-9616 is marked ‘X/6’ for identification.

9. On behalf of O.P.No.5 National Insurance Company

neither oral nor documentary evidence was adduced.

5

10. The learned Tribunal allowed the Claim Petition and

passed the impugned Award directing the Insurance Company

to pay the amount of Rs. 2,85,275/- along with simple interest

thereon @ 6% p.a. from the date of filing application till the

date of realization of the compensation amount. Further the

9% interest was also directed to be paid if the said

compensation amount was not paid by the Insurance

Company within 60 days from the date of the passing of the

Award.

11. The appellant has assailed the impugned Award on two

grounds firstly the penal interest is illegal; secondly the

claimant injured had not sustained any injury in the accident

alleged to be caused by the offending Truck.

11.1 So far as the first plea is concerned, from the perusal of

the impugned Award, it is found that the Appellant-Insurance

Company was directed to pay the amount of compensation

along with interest thereon within 60 days from the date of

passing the Award and in failure of the same the Insurance

Company was directed to pay the 9% interest on the amount

of compensation till the date of realization of the compensation

amount. Up to this extent the impugned Award by which

the penal interest has been directed to be paid is found

bad in the eye of law and same requires interference as the

penal interest should not have been awarded by the

6

learned Tribunal because the claimant had to get the

impugned Award executed under Section 174 of the M.V.

Act. As such in the impugned Award penal interest is

hereby struck off.

11.2 So far as the second plea raised by the Appellant

assailing the impugned Award on the ground that the

claimant injured had sustained no injury by causing the

accident by the offending Truck. This plea of the fact has

been raised on behalf of the Appellant for the first time at

the stage of appeal; While before the learned Tribunal on

behalf of the Appellant Insurance Company in its written

statement has admitted that the claimant Ashim Parveen

@ Nagmi injured had sustained injury in the accident

caused by the contributory negligence of the driver of

Bolero as well as offending Truck. This admission made by

the Appellant-Insurance Company in the pleading of the

written statement is binding upon the Appellant Insurance

Company under Section 21 of Indian Evidence Act and cannot

deviate from the same at the stage of appeal for the first time.

11.3 It is also pertinent herein that on behalf claimant to

prove the said accident caused by the offending Truck have

been examined altogether 03 witnesses P.W.1 Md. Naushad,

P.W.2 Md. Israfil and P.W.3 Asmin Parveen @ Nagmi.

11.4 P.W.1 Md. Naushad is also the eye-witness of the said

accident. He has also stated that he was coming by the

Bolero vehicle after attending the marriage ceremony when

the said Bolero reached near village Jhalakdiha, the Truck

No. JH-11F-9616 dashed to the Bolero which was being

driven by its driver rashly and negligently causing death of

Md. Adil Ansari at the spot and other passenger including

Asmin Parveen sustained injury. This witness has also stated

that Asmin Parveen @ Nagmi had fracture in her left hand

and jaw as well. No contrary conclusion could be drawn on

behalf of the Insurance Company from this witness in

cross-examination. P.W.2 Md. Israfil is also the eye witness.

He was also travelling by the Bolero vehicle to which the

offending Truck had dashed has corroborated the claimant’s

story. P.W.3 is Asmin Parveen @ Nagmi injured eye

witness herself. She has also categorically stated that the

offending Truck No. JH-11F-9616 had dashed to the Bolero

vehicle which was being driven by its driver rashly and

negligently causing death of Md. Adil Ansari her cousin and

she and other family members sustained injuries.

11.5 On behalf of the claimant in documentary evidence also

adduced the F.I.R. of the Bengabad P.S. Case No. 128 of

2017 which was lodged against the driver of the Truck

JH-11F-9616. Moreover the prescription and medical bill

were also filed on behalf of the claimant/victim and the case

of claimant is proved from the ocular evidence and

documentary evidence as well, same was also

corroborated with the admission made by the

Appellant-Insurance Company in the pleadings of its

written statement who did not adduce any oral or

documentary evidence to controvert the pleading and

evidence of the claimant. As such for the first time this

factual plea cannot be raised on behalf of the Appellant

challenging the impugned Award.

11.6 The Hon’ble Apex Court held in Saroj v. Het Lal (2011)

1 SCC 388 para 18 reads as under:

18. On considering the rival arguments, it must be said that

the petition could not have been dismissed in totality.

Presuming it to be a hit-and-run case, the appellants were

entitled to at least Rs. 25,000 as per the provisions of Section

161(3)(a) of the Motor Vehicles Act. Therefore, both the courts

below have obviously failed to note this provision. But that is

not the end of the matter. In our opinion, both the courts

below have completely erred in giving the finding that it was a

hit-and-run case and that the vehicle concerned belonging to

Respondent 2 was not involved in the accident. Insofar as that

finding is concerned, it was an admitted position in the

pleadings of Respondent 2 that firstly, the Tata 207 vehicle

bearing Registration No. HR 38 L 6592 was involved in an

accident with the motorcycle bearing Registration No. HR 26 P

9413 which took place on 16-9-2005 at 3.30 p.m. and secondly,

the said vehicle was being driven by Respondent 1. This

admission in the pleadings which we have quoted in the order

was itself sufficient to hold that the vehicle concerned

belonging to Respondent 2 was involved in the accident. This

admission was never traversed by Respondent 2 and, thus,

there was no occasion to hold that the said vehicle was not

involved and that it was a hit-and-run case. It is surprising that

not only the Tribunal but the High Court also should have

ignored the vital admission on the part of Respondent 2. It

was nobody’s case that this admission of Respondent 2 was in

collusion between Respondent 2 and the appellants. Once this

position is clear, there is no occasion for holding that the

vehicle was not involved in the accident and on that count

exonerating the three respondents.

11.7 The Hon’ble Apex Court held in RAMA KT BARMAN (DIED) THR. LRS VERSUS MD. MAHIM ALI & ORS. 2024 LiveLaw SC 637 that it is well settled principle of law that the Court cannot create any new case at the appellate stage for either of parties and Appellate Court is supposed to decide the issue involved in the suit based on pleading of parties.Para 14 reads as under:

14. Apart from the fact that none of the said substantial

questions of law formulated by the High Court were either

raised before the trial court or the appellate court, none of

parties was given any opportunity of leading the evidence on

the said issues. It is well-settled principle of law that the Court

cannot create any new case at the appellate stage for either

of the parties, and the appellate court is supposed to decide

the issues involved in the suit based on the pleadings of the

parties.

12. In view of the above analysis of the evidence on record,

this Appeal is partly allowed to the extent that in the

impugned Award, the penal interest is struck off and the rest

of the part of appeal is dismissed affirming the impugned

Award except strucking off penal interest.

(Subhash Chand, J.)